FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE: MIGUEL SELWYN THOMAS, 

Debtor. No. 03-57164

BAP No.

CC 03-1052 BYRON Z. MOLDO, Chapter 7 Bk. No. Trustee,  SV 01-11666-AG Appellant, Adv. No.

v. AD 02-1022-AG

ARVIS ASH, OPINION

Appellee. 

Appeal from the Ninth Circuit Bankruptcy Appellate Panel

Perris, Marlar and Pappas, Bankruptcy Judges, Presiding

Argued and Submitted

September 14, 2005—Pasadena, California

Filed November 18, 2005

Before: Susan P. Graber and William A. Fletcher,

Circuit Judges, and Jeremy Fogel, District Judge*

Opinion by Judge Fogel

*The Honorable Jeremy Fogel, United States District Judge for the

Northern District of California, sitting by designation. 

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COUNSEL

Anthony A. Friedman, Rein Evans & Sestanovich, LLP, Los

Angeles, California, for the appellant. 

Andrew E. Smyth, Los Angeles, California, and Arvis Ash,

pro se, Van Nuys, California, for the appellee.

OPINION

FOGEL, District Judge: 

Byron Moldo, the Chapter 7 Trustee (“Trustee”), appeals a

decision of the Bankruptcy Appellate Panel (“BAP”) reversing the bankruptcy court’s determination that the bankruptcy

debtor, Miguel Selwyn Thomas (“Debtor”), fraudulently

transferred a condominium to his mother, Arvis Ash (“Ash”),

before filing for bankruptcy. We have jurisdiction pursuant to

28 U.S.C. § 158(d). Because we conclude that the BAP erroneously excluded from its review the relevant findings underpinning the bankruptcy court’s judgment, we vacate and

remand so that the BAP may review the bankruptcy court’s

judgment based upon the full record. 

BACKGROUND

Debtor acquired legal title to a condominium located in

Van Nuys, California in 1997, and executed a quitclaim deed

conveying the condominium to Ash in 2000. The quitclaim

deed was recorded on June 7, 2000. On February 28, 2001,

Debtor filed a voluntary petition for relief under Chapter 7 of

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Title 11 of the United States Code. Trustee subsequently filed

an adversary proceeding against Ash, seeking to set aside the

transfer of the condominium as fraudulent under California’s

fraudulent transfer laws.1

The bankruptcy court conducted a one-day bench trial on

January 7, 2003. At the start of the trial, Trustee’s counsel

clarified that Trustee would attempt to demonstrate fraudulent

transfer on the grounds that Debtor was insolvent at the time

of conveyance and did not receive equivalent value for the

condominium; counsel stated that Trustee would not attempt

to prove that Debtor actually intended to defraud his creditors.

Immediately following the bench trial, the bankruptcy court

rendered an oral decision in favor of Trustee, concluding that

Trustee had demonstrated insolvency at the time of the transfer because Debtor’s bankruptcy petition disclosed a single

debt of approximately $2,000 and indicated that he did not

receive any income for the two years preceding his petition.

The court further concluded that Debtor had gifted the condominium to his mother and therefore had not received reasonably equivalent value.2

Two days later, on January 9, 2003, Ash filed a motion to

amend the judgment. On January 21, 2003, the bankruptcy

court issued a written judgment in favor of Trustee, voiding

the transfer as fraudulent and preserving the condominium for

the benefit of the bankruptcy estate. The judgment, which did

not address Ash’s pending motion, was entered on January

22, 2003. After the completion of briefing on Ash’s timely

appeal, the BAP discovered the existence of Ash’s pending

motion to amend the judgment; it therefore suspended the

1Pursuant to 11 U.S.C. § 544, a bankruptcy trustee may avoid any transfer by the debtor that constitutes a fraudulent transfer under state law.

Decker v. Advantage Fund Ltd., 362 F.3d 593, 596 (9th Cir. 2004). 

2The bankruptcy court made an alternative finding that, even if it were

to accept Ash’s representation that she paid Debtor $3,600 for the condominium, such payment did not constitute equivalent value. 

IN RE: THOMAS 15461
appeal and remanded to the bankruptcy court for disposition

of the motion. 

On remand, the bankruptcy court permitted the parties to

depose Debtor, who had not been available at trial, to conduct

other discovery, and to submit additional evidence and briefing. On August 14, 2003, the court issued a written decision

denying Ash’s motion to amend the judgment and reaffirming

judgment in favor of Trustee (“August 2003 Order”). However, while the bankruptcy court again found that Debtor was

insolvent at the time of the conveyance, the insolvency determination on remand was based upon new and different factual

determinations. Specifically, the court found that, at the time

of transfer, Debtor had debt of approximately $90,000 (as

opposed to debt of approximately $2,000 as originally found)

and income of approximately $30,000 per year (as opposed to

no income as originally found). The bankruptcy court stated

explicitly that, to the extent these new findings were inconsistent with the original findings, the new findings constituted

the findings of the court. 

The BAP then reinstated Ash’s appeal. At oral argument,

Trustee asked that the BAP consider the bankruptcy court’s

amended findings set forth in the August 2003 Order. The

BAP declined to do so; instead, it proceeded with Ash’s

appeal as though the bankruptcy court’s judgment still rested

only upon the original findings. On November 12, 2003, the

BAP issued a written memorandum disposition reversing the

bankruptcy court’s judgment for Trustee, after concluding that

a single debt of approximately $2,000 and a lack of income

at the time of conveyance were insufficient as a matter of law

to establish insolvency. 

In declining to address the bankruptcy court’s amended

findings, the BAP relied upon Rule 8002(b) of the Federal

Rules of Bankruptcy Procedure. That rule provides, inter alia,

that a party seeking review of an order disposing of a motion

to amend the judgment must file an amended notice of appeal.

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Fed. R. Bank. P. 8002(b). The BAP concluded that the

amended findings that ultimately underpinned the bankruptcy

court’s judgment were not subject to review because those

findings were set forth in the August 2003 Order denying

Ash’s motion to amend the judgment, and Ash did not file an

amended notice of appeal seeking review of that order pursuant to Rule 8002(b). 

STANDARD OF REVIEW

We review de novo the decisions of the BAP. Hanf v. Summers (In re Summers), 332 F.3d 1240, 1242 (9th Cir. 2003).

We review the bankruptcy court’s conclusions of law de novo

and its findings of fact for clear error. Id. 

DISCUSSION

[1] The BAP erred in concluding that it lacked jurisdiction

to review the bankruptcy court’s amended findings. Although

the parties did not brief the jurisdictional issue on appeal, we

are required to consider the presence or absence of subject

matter jurisdiction sua sponte. Cannon v. Hawaii Corp. (In re

Hawaii Corp.), 796 F.2d 1139, 1141 (9th Cir. 1986). 

Rule 8002(b), on which the BAP relied in limiting its

review to the bankruptcy court’s original findings, provides:

If any party makes a timely motion of a type specified immediately below, the time for appeal for all

parties runs from the entry of the order disposing of

the last such motion outstanding. This provision

applies to a timely motion: 

(1) to amend or make additional findings of fact

under Rule 7052, whether or not granting the motion

would alter the judgment; 

(2) to alter or amend the judgment under Rule

9023; 

IN RE: THOMAS 15463
(3) for a new trial under Rule 9023; or 

(4) for relief under Rule 9024 if the motion is filed

no later than 10 days after the entry of judgment. A

notice of appeal filed after announcement or entry of

the judgment, order, or decree but before disposition

of any of the above motions is ineffective to appeal

from the judgment, order, or decree, or part thereof,

specified in the notice of appeal, until the entry of

the order disposing of the last such motion outstanding. Appellate review of an order disposing of any of

the above motions requires the party, in compliance

with Rule 8001, to amend a previously filed notice

of appeal. A party intending to challenge an alteration or amendment of the judgment, order, or

decree shall file a notice, or an amended notice, of

appeal within the time prescribed by this Rule 8002

measured from the entry of the order disposing of

the last such motion outstanding. No additional fees

will be required for filing an amended notice. 

Fed. R. Bank. P. 8002(b). 

[2] Under this rule, Ash’s notice of appeal of the bankruptcy court’s judgment was ineffective when filed because of

the pendency of her motion to amend the judgment. See id.,

advisory committee notes (1994 Amend.) (stating that “[a]

notice filed before the filing of one of the specified motions

or after the filing of a motion but before disposition of the

motion is, in effect, suspended until the motion is disposed of,

whereupon, the previously filed notice effectively places

jurisdiction in the district court or bankruptcy appellate

panel”). Ash’s appeal of the judgment became effective only

upon the bankruptcy court’s entry of its August 2003 Order

disposing of her motion. At that time, the judgment rested on

the amended findings. The BAP thus had jurisdiction to

review the amended findings. 

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[3] Rule 8002(b) requires an amended notice of appeal

when the bankruptcy court’s ruling on a postjudgment motion

alters the judgment and the appellant wishes to challenge that

alteration. Rule 8002(b) provides that “[a] party intending to

challenge an alteration or amendment of the judgment, order,

or decree shall file a notice, or an amended notice, of appeal

within the time prescribed by this Rule 8002 measured from

the entry of the order disposing of the last such motion outstanding.” Fed. R. Bank. P. 8002(b). The Advisory Committee Notes clarify that “[i]f the judgment is altered upon

disposition of a postjudgment motion . . . and if a party who

has previously filed a notice of appeal wishes to appeal from

the disposition of the motion, the party must amend the notice

to so indicate.” Id., advisory committee notes (1994 Amend.)

(emphasis added). 

[4] The BAP apparently believed that these provisions

deprived it of jurisdiction to consider any aspect of the August

2003 Order because Ash did not file an amended notice of

appeal with respect to that order. However, Ash did not seek

review of the disposition of her motion to amend the judgment, but rather of the judgment itself. See 10 Collier on

Bankruptcy ¶ 8002.08 (15th ed., rev. 2005) (“If the appellant

does not wish to appeal from the order disposing of the postdecisional motion, but only from the original order, an

amended notice of appeal is unnecessary.”). Accordingly, the

BAP erred in limiting its review to the original findings,

which had been superseded at the time Ash’s appeal became

effective.3

Remand is the appropriate remedy when the BAP erroneously fails to address the merits of an appeal of a bankruptcy

3The BAP’s approach may have worked a substantial injustice as to

Trustee. The bankruptcy court’s findings regarding insolvency arguably

were much stronger on remand, and thus were more favorable to Trustee,

but the BAP declined to consider those findings because Ash failed to file

an amended notice of appeal. 

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court’s judgment because of a perceived procedural bar. See

Arrowhead Estates Dev. Co. v. U.S. Trustee (In re Arrowhead

Estates Dev. Co.), 42 F.3d 1306, 1311-12 (9th Cir. 1994)

(concluding that the BAP erred in failing to reach the merits

of an appeal of the bankruptcy court’s judgment and remanding for further proceedings). 

VACATED AND REMANDED. 

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